Recently, on BarkGrowlBite, I posted an article on former NYPD Commissioner Ray Kelly which included his views on good and bad police reform proposals. Kelly defended the much maligned practice of ‘stop and frisk’ tactics as “a tool that should be in the toolbox,”
Kelly expressed his opposition to abolishing ‘qualified immunity’ for police officers, which protects cops from many civil lawsuits. House Democrats led by Nancy Pelosi have filed legislation that would abolish qualified immunity for police officers. Kelly believes that is a recipe for police inaction: “If you’re personally liable and in a high-risk business, chances are your risk-taking is going to be quite a bit less. I would say that’s probably bad for society.”
On Monday, the Supreme Court upheld qualified immunity by refusing to hear a slew of cases against police officers that have been piling up before the court. The court relied on Harlow v. Fitzgerald (1982) in which it ruled that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
And while the White House is open to police reforms, Trump’s press secretary labeled proposals to reform qualified immunity as a “non-starter.”
Tom, who comments on Big Jolly Times from time to time, responded to the Kelly article y saying: “Qualified immunity has become a license for police and other government officials to crap all over the rights of citizens with no fear of civil liability.”
That is not correct. Cops can be sued if they knowingly violated the constitutional rights of people. And so can the cities and counties that employ those cops.
‘Qualified’ is the key word. Qualified immunity does not protect bad cops. Whenever bad cops are protected, it’s because of negotiated police union contracts and civil service rules.
Qualified immunity protects cops from lawsuits based on spurious accusations. Let’s take excessive force. Police officers are always being accused of using excessive force when in most instances they used only the amount of force needed to control a person who is resisting arrest.
In August 2014, NYPD cops tried to arrest Eric Garner, a 400-pound giant. During a struggle when he resisted arrest, officer Daniel Pantaleo applied what appeared to be a choke hold while Garner uttered the now famous words: “I can’t breathe.” Pantaleo was never charged by the DA or the Feds, but he was unjustly fired and stripped of his pension in August 2019 at the insistence of Sandinista-loving Mayor Bill de Blasio.
While the death of Garner was a tragedy, Pantaleo’s firing was a travesty. Until he applied what may or not have been a choke hold, the other officers were unable to control the”gentle giant” as Garner was described.
What looks to bystanders as excessive force may actually be the force officers had to use in order to control a person who is resisting arrest.
Yes, cops do use excessive force, but they are not necessarily bad cops. Often overlooked is what led a cop to kick the shit out of a suspect. Did the suspect spit in the cop’s face or kick him in he balls? Or did the suspect flee in his car and during the chase endangered the lives of innocent drivers and pedestrians? Yes, that pisses off the ops and everyone knows that cops should never ever lose their tempers. But losing one’s temper is a human frailty and cops are not robots.
However, cops should never use excessive force when they get pissed off because a suspect called them vile names.
Police officers are always confronted with spurious accusations, When I seized heroin or other illicit drugs from a drug user or dealer, I was almost always accused of planting the drugs, a standard defense at the time. When cops arrest a woman, they are often accused of sexually abusing the arrestee when nothing like that even remotely occurred.
Should cops face lawsuits for doing their job? Of course not! And that is why qualified immunity must be kept in place.
When cops knowingly violate the constitutional rights of citizens, they can be sued for their misconduct. Houston PD officer Gerald Goines and his partner Steven Bryant should and can be sued by the families of Rhogena Nicholas and Dennis Tuttle who were killed in the infamous Harding Street raid. However, since Goines and Bryant do not have deep pockets, any lawsuit will include the city and HPD.
But when police officers do their job and something goes wrong if they make an unintentional mistake, they should continue to be immune from lawsuits. And they should continue to be protected against spurious accusations. That’s why qualified immunity must be kept in place.
This action, if successful, would have a MAJOR consequence, which may or may not be intended. Even honest, well-meaning and well-trained cops will make mistakes. Bad guys, or their families, go after PDs for a variety of reasons but they are perceived to have deep pockets and sometimes pay off, even in very questionable cases, just to make the issue go away, or because it would cost more to fight. If the cops were potentially PERSONALLY on the hook for these cases, legit or not, it could easily bankrupt the cops and their families. (It is my understanding in many states newly elected Sheriff’s put their houses and personal property in their spouses name or into a trust just to insulate them from this sort of thing.) If a person KNEW UP FRONT that they could be personally financially liable for either an honest mistake or what is perceived by a jury to be an error when one did in fact not occur, they might be unlikely to become a cop. It is hard enough now to recruit or retain good people as it is. This could destroy the modern concept of policing in this country, which is very possibly the intended consequence.
It seems clear that police should simply ask someone who has broken the law if they will allow themselves to be arrested. If the answer is no, then, let them go. Document the interaction, and move on. That’s really the only safe play here.
The charging of the Atlanta cop, the plethora of BS charges, is my clue that no cop in the US should do anything more than phone it in at this point. The dead arrest resister not only successfully beat two cops in a physical fight, he managed to steal AND USE one cop’s tazer against the other cop. What we know now is, the cops have a duty to retreat when that happens. When deadly force is used against them, their duty is to retreat and let the guy get away. Clown. World.
Now, having said that, this could have easily gone a different way. Guy was in a private parking lot. They asked him to move his car to a parking spot, which he did. They could easily have had the guy call family or a friend for a ride home. They spent a lot of time with him that could have been used equally waiting for someone to show up and drive him home, or having two licensed drivers come and drive the drunk AND the car home.
If we want to be sure there are no more issues, take the guy’s keys and have them at the front desk of the police precinct, so sleepy drunk can pick them up in the morning. If we want to go a little farther, have the car towed and impounded, so he will have to pay to get it out. The guy was polite and cooperative, and the cops let a drunk guy operate his car after he was detained. Based on that, they could have just made sure the guy got home safe, and called it a day. I have known people caught in similar situations who got that courtesy. Of course, that was a long time ago, and by HCSO, back when the culture was laid back.
Did the cops have the right to arrest the guy? Sure. Did they absolutely have to? No.
TL;DR: Shooting was justified, charges are bullshit. Also, the whole thing could have been avoided in the first place.
Bill, the cops were right in trying to arrest Rayshard Brooks. His car was blocking Wendy’s window-pickup lane.
He cooperated with the cops until they tried to arrest him. Then he fought them and fled because he knew he would be returned to prison as a parole violator.
Because the cops were courteous to Brooks, he cooperated with them, probably thinking they were not going to arrest him.
Could the cops have done the alternative things you pointed out? Yes, but arresting him for his own safety was the best choice.
Was this a bad shoot? Unfortunately, it sort of looks that way.
Howie,
I partially agree with your assessment…..guy knew he would probably get violated if he was arrested, so once the arrest happened, he had nothing to lose, he was going to prison. True. I disagree that the shooting wasn’t justified. I watched the tape, I saw the guy overpower two cops, steal a tazer, then (and this is the important part) turn to shoot at the cop. That right there was my clue that it was perfectly OK to shoot the guy. Had he just run without turning to shoot at the cop, I would agree and say no, he shouldn’t have been shot. He was shot immediately after firing on the cop. Yes, he managed to turn around to run again, but the whole thing was literally in a second or two. I would never convict that cop for any of the bs thrown at him. The fact that the D.A. shared the presser with….the family’s lawyer…..tells us there isn’t anything fair or just about this prosecution.
As for the safety argument…..they let the guy get drive his car to a parking spot. If he was such a safety risk, why would you let him drive the car? If he was a safety risk, he could have plowed into other cars, or into the restaurant, or run over the cops. Safety risk = call for a wrecker to move the car.
They let him pull the car into a parking spot, out of the way, because they wanted to solve the problem without making a whole production out of it. Guy’s blocking the drive through. Get the car moved. Problem solved, now the question is what to do with the guy. Are you really telling me that having the guy who was (at the time) not disorderly or aggressive call for a ride to get home wouldn’t have solved the problem just as successfully as arresting him?
FWIW, I have an issue with handing out DWI’s for people on private property. Yes, I’m sure the guy drove drunk on the street to get to the restaurant. But he wasn’t on the road at the time of the encounter. Busting people for sleeping it off on private property just encourages drunks to keep driving, to try and make it home to safety, vs. being an exposed target for DWI arrest for hours and hours while sleeping it off at a rest stop or parking lot.
Call it the law of unintended consequences.
Having said all that, maybe the officers figured out a DWI would violate the guy and that society would be better off with him in prison.
he was in the drive through lane. Had he continued there would be a driver fumbling around trying to eat while being drunk
Bill, I said that Brooks was at risk to his own safety, not to the public.
As for the shooting, the Taser is a non lethal weapon. Thus Brooks presented no imminent threat the cop’s life, the standard for a good shoot.
Okay, I wasn’t there. But my reasonable guess is that Brooks THOUGHT he’d snagged a Glock, and the way he wielded it lends some credibility to that assumption. It was not the officer whose Taser was stolen who fired the fatal shot(s).
I gotta call it a righteous shoot, and I pity the poor guys.
The DA had declared it was a lethal weapon a week before by virtue of it rendering an officer (with a gun) incapacitated for 5 seconds
Howie, there are over 1000 documented cases where use of a taser resulted in death. Law enforcement officials stopped referring to tasers as non-lethal some time ago, now calling them less lethal. In the totality of context, this was a good shoot by recognized standards. I otherwise agree with you regarding qualified immunity.
I got a real problem with this. ‘Ignorance of the law is no excuse’, unless of course you’re the one charged with enforcing the law, in which case it is? A trained ‘Law Enforcement Professional’ is not expected to know the well-defined limits of his authority, but I (I Am Not A Lawyer) am expected to know every damn one?
But I got another problem with the concept of Qualified Immunity. It only works one way. If the Judge is gonna tell me ‘ignorance of the law is no excuse’, then why should it work in reverse for a person whose sole duty is to uphold the law? I am, personally, responsible for knowing the entirety of the law, while those responsible for carrying out that selfsame law are not? I know a couple cats who have been both attorneys and LEOs, and they are (ahem) uniform in their response. That is: chickenshit.